Police v Bulgin
[2010] SASC 143
•20 May 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BULGIN
[2010] SASC 143
Judgment of The Honourable Justice White
20 May 2010
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
Appeal against dismissal of a complaint charging the respondent with a contravention of r 20 of the Australian Road Rules – Magistrate dismissed the complaint after a voir dire ruling that certificates tendered under ss 79B(10) and 175(3) of the Road Traffic Act 1961 (SA) as statutory aids of proof of the offence were inadmissible.
Whether the finding that a photographic detection device (“speed camera”) was not operated according to operating instructions meant that the prosecution could not tender a statutory aid of proof – whether the prosecution must prove that the speed camera was in proper working order and properly operated at the time of its detection of the alleged offence as a precondition to the admissibility of certificates as statutory aids of proof.
Held: The Magistrate should have concluded that the conditions for the admission into evidence of the statutory aids to proof had been satisfied – the finding that there had been non-compliance with the operating instructions did not preclude the admission of the certificates – the prosecution did not have to establish that the speed camera was in proper working order and was properly operated before it could tender the certificates – the prosecution does have to establish in the substantive trial that the speed camera was at the relevant time in proper working order and was properly operated and, depending upon the other evidence in the trial, may rely upon the statutory aids to proof tendered under ss 79B(10) and 175(3) for that purpose – appeal allowed.
Summary Procedure Act 1921 (SA) s 51; Road Traffic Act 1961 (SA) s 79B, s 175, s 47K; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 (SA) reg 50; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 15, reg 19; Australian Road Rules r 10, r 20; Acts Interpretation Act 1915 (SA), referred to.
Police v Dodd (2004) 88 SASR 130; Llewellyn v Police (2005) 91 SASR 418, discussed.
Police v Siviour (2001) 80 SASR 140; Police v Henwood (2005) 92 SASR 15; Evans v Benson (1986) 46 SASR 317; Ozbinay v Crowley (1993) 17 MVR 176; Fitzgerald v Howey (1996) 24 MVR 369; Williams v Jacobs (1999) 29 MVR 244; Bogdanovski v Buckingham (1987) 46 SASR 317, considered.
POLICE v BULGIN
[2010] SASC 143Magistrates Appeal
WHITE J: On 7 June 2007, a photographic detection device, commonly referred to as a “speed camera”, detected the respondent travelling at 61 kph on Pine Avenue at Hahndorf. The applicable speed limit was 50 kph. The respondent was charged with a contravention of r 20 of the Australian Road Rules (ARR).
After hearing evidence on the voir dire, a Magistrate ruled that the certificates tendered as statutory aids to proof of the offence should not be admitted into evidence. This was because the Magistrate considered that the speed camera had not been operated on 7 June 2007 in accordance with the relevant operating instructions.
Following that ruling, the prosecution led no further evidence of the alleged offence. The Magistrate then dismissed the complaint. The Court record contains the following endorsement signed by the Magistrate:
Based upon my ruling delivered on 4.9.09 having upheld the objection to the admission of the certificates as to the accuracy of the speed analysing instrument and there being no other evidence presented in relation to that alleged offence I am not satisfied that the speed detection device established on Pine Avenue at Hahndorf on 7.6.07 is reliable. Accordingly dismiss complaint.
This endorsement rather suggests that the Magistrate dismissed the complaint because he was not satisfied that the speed detection device upon which the prosecution relied was reliable. However, I am satisfied that, in truth, the complaint was dismissed because the prosecution had led no evidence concerning the speed of the defendant’s vehicle after its tender of the certificates comprising the statutory aids to proof was rejected.
The Police now appeal against the dismissal of the complaint, contending that the Magistrate’s voir dire ruling was wrong. The appeal raises issues about the operation of the statutory aids to proof contained in s 79B(10) of the Road Traffic Act 1961 (SA) (RTA). The first issue is whether a Magistrate’s finding that a speed camera was not operated in accordance with the manufacturer’s operating instructions, or those issued by the Police themselves, with the resultant possibility of an incorrect reading, has the effect that the prosecution may not tender a certificate comprising a statutory aid to proof. The second issue is whether the prosecution must prove that the speed camera was in proper order and properly operated at the time of detection of the alleged offence before it can tender the certificate comprising the statutory aid to proof.
The respondent was also charged on a separate complaint with a speeding offence alleged to have been committed on 16 May 2007. This charge was heard at the same time as the charge concerning the alleged offence of 7 June 2007.[1] The Magistrate did not exclude the certificates relied upon by the prosecution in relation to that charge. No question about that charge, or the Magistrate’s voir dire ruling in relation to that charge, arises on the present appeal.
[1] Summary Procedure Act 1921 (SA) s 51(2).
Circumstances of the Offence Alleged
On the morning of 7 June 2007, a photographic detection device was mounted on the front of an unmarked vehicle parked on the eastern side of Pine Avenue at Hahndorf and facing in a southerly direction. The device was a Traffipax Speedophot II which, as I understand it, comprised a radar linked to a camera. The respondent’s vehicle was photographed as it drove in a northerly direction towards the device. The radar to which the camera was linked registered the respondent’s vehicle as travelling at 61 kph, and the camera took a photograph of it.
The respondent received an expiation notice but elected to be prosecuted.[2]
[2] Road Traffic Act 1961 (SA) s 79B(4)-(6).
The Charged Offence
The respondent was charged with a contravention of r 20 of the ARR. Rule 20 provides:
A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.
Offence provision.
The words “offence provision” mean, by virtue of r 10(1) of the ARR, that the contravention of r 20 is an offence. Regulation 50 of the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999 fixes the penalty for the contravention.
The Statutory Aids to Proof
At the hearing, the prosecution invoked the statutory aids to proof contained in ss 79B(10) and 175(3) of the RTA. As the respondent was not charged with an offence against s 79B itself, the prosecution could not invoke the statutory aid to proof contained in s 79B(2). Section 79B(10) provides:
(10)In proceedings for an offence against this section or proceedings for a prescribed offence—
(a) a photograph or series of photographs produced by the prosecution will be admitted in evidence if—
(i)the photograph or each of the photographs was produced from an exposure taken, or electronic record made, by a photographic detection device; and
(ii)the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with that use of the device,
and a denotation as to date, time and location that appears as part of such a photograph will be accepted as proof, in the absence of proof to the contrary, of the date, time and location at which the exposure was taken or the electronic record made by the photographic detection device; and
(b) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other police officer of or above the rank of inspector, and purporting to certify—
(i)that a specified device used at a specified location during a specified period was a photographic detection device; and
(ii)that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period,
will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and
(c) where it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate.
Section 79B(10) relates to proceedings for an offence against both s 79B itself and for a “prescribed offence”. A contravention of ARR 20 is a prescribed offence. See the definition of “prescribed offence” in s 79B(1), s 14BA of the Acts Interpretation Action 1915 (SA) (as explained in Police v Siviour[3]) and reg 15 of the Road Traffic (Miscellaneous) Regulations 1999 (the Miscellaneous Regulations).
[3] [2001] SASC 246; (2001) 80 SASR 140.
Section 79B(10)(a) provides for the admission into evidence of a photograph taken by a speed camera. A court must admit the photograph if satisfied of the matters mentioned in the two placita mentioned in paragraph (a): the photograph was produced from a speed camera and there was compliance with the RTA and the relevant Regulations.
Once admitted, the denotations in the photograph as to date, time and location are, in the absence of proof to the contrary, to be accepted as proof of the matters denoted. That is, unless a defendant establishes on the balance of probabilities that the photograph was not taken at the date, time and place denoted, the court is to accept that the denotations on the photograph concerning those matters are accurate.
Next, by sub-paragraph (b), s 79B(10) facilitates proof of the two matters which the prosecution must establish under sub-paragraph (a) in order to have the photograph admitted. A certificate signed by a senior police officer which purports to certify that a specified device used at a specified location during a specified period was a photographic detection device, and that there was compliance with the requirements of the RTA and the Regulations as to the operation and testing of photographic detection devices in the use of that device at the relevant time is to be accepted, in the absence of proof to the contrary, as proof of the facts so certified. Thus, sub-paragraph (b) is an aid to the proof of the matters necessary for the tender of the photograph and the operation of the presumption contained in sub-paragraph (a).
Sub-paragraph (c) of s 79B(10) then contains a further, and separate, aid to proof. If the senior police officer certifies in the document produced under sub paragraph (b) that the photographic detection device was designed and set to operate according to a specified system during the period specified for the purposes of sub-paragraph (b), then it is to be presumed, in the absence of proof to the contrary, both that the device was in fact designed and set to operate according to that system during the specified period, and that it did in fact operate according to that system.
On the appeal, it was common ground that the requirements as to the operation and testing of photographic detection devices within the meaning of s 79B(10)(a)(ii) are contained in reg 19(1) of the Miscellaneous Regulations. Regulation 19(1) provides:
(1)Where a photographic detection device referred to in regulation 14(1)(c) is used to provide evidence of speeding offences, the following provisions must be complied with:
(a) the device must be programmed, positioned and set to operate so that when the device registers a vehicle as proceeding at a speed equal to or greater than a speed set on the device—
(i)the camera forming part of or linked to the device takes an exposure, or makes an electronic record, of that vehicle from the front or from the rear; and
(ii)the date, time and code for the location at which the exposure is taken, or the electronic record is made, together with the speed and direction of travel of the vehicle as registered by the device, are recorded on the exposure or electronic record;
(b) after a person—
(i)sets up the device at a given location; or
(ii)inserts recording media into the camera at that location; or
(iii)relocates the device with recording media in place,
the person must make a check to ensure that the device—
(iv)correctly indicates on an electronic display the date, time and code for the location where exposures are taken, or electronic records are made, by the camera; and
(v) is set to operate in accordance with the provisions of paragraph (a);
(c) the checks referred to in paragraph (b) must be repeated immediately before the device is removed from a given location;
(d) if—
(i) a check; or
(ii) in the case of a wet film camera—the film when developed; or
(iii)in the case of a digital or other electronic camera—any electronic record made by the camera,
indicates a fault that has affected the proper operation of the device as required by this regulation, that part of the film affected by the fault, or those electronic records affected by the fault, (as the case may be), must be rejected for evidentiary purposes;
(e) if a photograph produced from an exposure or electronic record obtained in accordance with the provisions of paragraph (a) depicts the whole or part of more than 1 vehicle—
(i)in the portion of the photograph specified by the device's manufacturer as the portion that should depict the vehicle whose speed is being registered; and
(ii)travelling in the direction recorded on the exposure or electronic record as the direction of travel of the vehicle whose speed is being registered,
that photograph must be rejected for evidentiary purposes;
(f) the accuracy with which the device registers vehicle speeds must be tested on the day on which it is used (or on the day immediately preceding that day) with a view to the issuing of a certificate under section 175(3)(ba) of the Act.
In effect, reg 19(1)(a) requires a speed camera to be programmed, positioned and set to operate so that the camera photographs vehicles registered as proceeding at a speed equal to or greater than a speed set on the device, and so that it records on the photograph certain details, including the speed and direction of travel of the vehicles. Regulation 19(1)(b) requires that a check be made of a speed camera when it is first set up at a given location and again immediately before it is removed from that location. Regulation 19(1)(f) requires that speed cameras be tested for accuracy either on the day upon which they are used, or on the immediately preceding day.
Section 175(3)(ba) facilitates proof of the speed accuracy check conducted under reg 19(1)(f). It provides:
(3) In proceedings for an offence against this Act—
…
(ba) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other police officer of or above the rank of inspector, and purporting to certify that a specified traffic speed analyser had been tested on a specified day and was shown by the test to be accurate to the extent indicated in the document constitutes, in the absence of proof to the contrary, proof of the facts certified and that the traffic speed analyser was accurate to that extent on the day on which it was so tested and, for the purpose of measuring the speed of any motor vehicle—
(i)in the case of a traffic speed analyser that was, at the time of measurement, mounted in a fixed housing—during the period of 27 days immediately following that day; or
(ii)in any other case—on the day following that day,
whether or not the speed measured differed from the speed in relation to which the analyser was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test;
It was not suggested in this case that s 175(3)(ba) does not apply to a prosecution for a contravention of ARR 20.
The Voir Dire Hearing
At the conclusion of the prosecution opening, the Magistrate received the following documents relating to the charged offence of 7 June 2007:
1an extract from the Register of Motor Vehicles showing that the respondent was the registered owner of the photographed vehicle;
2a notice of the Governor published in the Government Gazette on 30 September 1999 under s 53A of the RTA by which the Governor approved the Traffipax Speedophot II as a traffic speed analyser (exhib P7);
3a certificate dated 18 March 2008 and signed by a Chief Inspector of Police purporting to certify to the matters specified in s 79B(10)(b) and (c) in relation to the speed camera used at Pine Avenue, Hahndorf on 7 June 2007 (exhib P10);
4a certificate dated 18 March 2008 signed by a Chief Inspector under s 175(3)(b) certifying to the accuracy of the speedometer of Holden sedan registered No XFK 751 (exhib P13). (This certificate showed that in a test on 4 May 2007 the speedometer of the vehicle registered 50 kph when its actual speed was 48 kph);
5a certificate dated 18 March 2008 signed by a Chief Inspector under s 175(3)(ba) certifying to the accuracy of the traffic speed analyser (speed camera) used on Pine Avenue, Hahndorf on 7 June 2007 (exhib P14). (This certificate showed that in a test on 7 June 2007, when the speed camera registered 48 kph the speedometer of Holden sedan registered no. XFK 751 registered 50 kph);
6a copy of the photograph of the respondent’s vehicle taken on Pine Avenue, Hahndorf on 7 June 2007 (exhib P19).
In addition, the prosecution tendered an affidavit from a police officer explaining, amongst other things, the denotations on a photograph produced by a speed camera.
The respondent challenged the admissibility of the certificate produced under s 79B(10) and of the certificates produced under s 175(3). In order to accommodate that challenge, the Magistrate admitted the certificates into evidence subject to objection and then embarked on a voir dire hearing to determine their admissibility.
In fact, the respondent’s challenge at trial appears to have been confined to the certificate produced under s 79B(10)(b) as it does not seem that any additional or separate challenge was made to the certificates tendered under s 175(3).
Given the terms of s 79B(10)(b), the challenge to the admissibility of the certificate signed by the Chief Inspector on 18 March 2008 seemed on its face to require proof by the respondent that the certificate had not in fact been signed by a police officer with the rank of inspector or above, or that the certificate did not certify to all the matters specified in placita (i) and (ii), or that, even it did so certify, that that certification was wrong. However, the respondent made his challenge to the admissibility of the certificate on a different basis. He contended that the speed camera on 7 June 2007 on Pine Avenue at Hahndorf had not been operated in accordance with the operating instructions of the manufacturer and of the Police. He submitted this had the effect that the speed camera’s recording of his vehicle’s speed was unreliable. The respondent contended in addition, or in the alternative, that it was necessary for the prosecution to establish that the speed camera used on 7 June 2007 was in good operating order and was operated properly before it could tender the s 79B(10) certificate, and the photograph taken of his vehicle.
In the voir dire hearing the prosecution called a Mr Hoffmann, an electrical engineer, and the respondent called a Dr Garwoli, a chartered professional engineer and scientist. Dr Garwoli had prepared a written report (exhib D1) in which he said:
The equipment utilised in both of these matters is excellent: I have no criticism of the equipment whatsoever.
My whole argument is based on the fact that there are adequate operating instructions relating to the use of this equipment and that these instructions have not been followed.
Dr Garwoli then referred to instructions contained in a manual containing operating procedures issued by the South Australian Police (exhib D2), the manufacturer’s instructions relating to the use of the speed camera (exhib D3), and to an Australian standard.
Dr Garwoli expressed the opinion that the operation of the speed camera on 7 June 2007 had not complied with the operating procedures of the police and of the manufacturer in six separate respects. Although Mr Hoffmann gave his evidence on the voir dire before Dr Garwoli, his evidence was directed to the criticisms of Dr Garwoli. He disagreed with Dr Garwoli’s conclusions. Neither Mr Hoffmann nor Dr Garwoli referred to reg 19 in the course of their evidence on the voir dire, nor to the matters required by reg 19. The question on the voir dire in relation to the alleged offence of 7 June 2007 was solely that of whether there had been non‑compliance with the police and manufacturer’s operating instructions with the resultant possibility of an unreliable reading.
The Magistrate’s Ruling
The Magistrate’s reasons for the voir dire ruling did not address the question of compliance with the requirements of reg 19. Instead, the Magistrate addressed Dr Garwoli’s critique of the compliance on 7 June 2007 with the requirements of the operating instructions. The Magistrate concluded:
I am persuaded that the position of the speed camera on Pine Avenue, Hahndorf was in breach of the operating instructions. There was within the beam of the radar a metal surface comprising the front fence of a house. That creates the possibility of the radar beam being reflected thereby creating the possibility of an incorrect reading. I uphold the objection to the admission of the Certificates in relation to Pine Avenue, Hahndorf.
In effect, the Magistrate regarded only one of Dr Garwoli’s criticisms as indicating a non‑compliance with operating instructions which may have affected the reliability of the speed camera’s reading.
The Magistrate’s use of the plural suggests that he excluded all the certificates tendered by the prosecution, i.e., that tendered under s 79B(10) and those tendered under s 175(3). However, his reasoning appears to have been directed to s 79B(10). That being so, I infer that the exclusion of the s 175(3) certificates was in some way consequential upon the exclusion of the s 79B(10) certificate.
Compliance with the Requirements of Regulation 19(1)
None of the evidence adduced by the prosecution or by the respondent on the voir dire suggested that there had been any non-compliance with the requirements of reg 19(1).
Regulation 19(1)(a) does contain requirements with respect to the programming, positioning and operation setting of a speed camera. It is apparent that those requirements are designed to minimise the possibility of mistaken or faulty recordings by a speed camera. However, the regulation does not require that a speed camera be programmed, positioned and set to operate in accordance with the operating instructions of the police themselves, or of the manufacturer. Nor does reg 19 require that a speed camera be programmed, positioned and set to operate in such a way that it will not, in any circumstance, produce a mistaken or faulty result. On the contrary, paragraphs (d) and (e) of r 19(1) contemplate that unreliable recordings may be made by a speed camera even when operated and tested in accordance with the requirements of reg 19(1)(a), (b) and (f). Those sub‑regulations preclude reliance on the photographs produced by a camera in specified circumstances.
There was no suggestion in this case, as there was in Police v Henwood,[4] that the police operating instructions comprised a requirement of the RTA or of the regulations made under it.
[4] [2005] SASC 209; (2005) 92 SASR 15.
In these circumstances, the finding that the position of the speed camera on Pine Avenue, Hahndorf on 7 June 2007 was in breach of the operating instructions of either the police or the manufacturer did not indicate non‑compliance with the requirements of reg 19, and did not warrant the exclusion from evidence of the s 79B(10) certificate on that basis.
Good Order and Proper Operation
On the appeal, the respondent repeated his submission that proof by the prosecution that the speed camera used in the detection of an offence had been in good operating order and was being properly operated was a condition of the admissibility of a certificate under s 79B(10)(b). He submitted that not only was evidence to this effect a necessary part of the overall prosecution case, it was necessary in order for the prosecution to be able to invoke the statutory aids to proof contained in s 79B(10). This was so, it was said, because unless the camera was in good order and condition, and operated correctly, any photograph which it took could not be said to indicate anything, and therefore would not satisfy the requirement of relevance which is an essential minimum condition for the admission of any evidence.
In prosecutions in which evidence derived from the operation of an instrument or device is relied upon, it must usually (absent any statutory provision to the contrary) be established that the instrument or device was at the relevant time in good operating order and condition, and that it was operated correctly. King CJ referred to this requirement in Evans v Benson[5] in relation to breath analysis instruments:
A breath analysis instrument can only indicate a blood alcohol concentration if it is in proper order and is properly operated. If an instrument is not in proper order or is not properly operated, it cannot be said to indicate any concentration of alcohol. For that reason it is necessary for the prosecution to prove that the instrument was in proper order and properly operated.[6]
Similarly, in Police v Henwood[7] Doyle CJ said:
That these matters [proper order and proper operation] can be proved by certificate cannot be allowed to obscure the fact that, in one way or another, it is necessary for the prosecution to prove that the breath analysing instrument was in proper order and was properly operated, before it can prove that a concentration of alcohol was indicated as being present by the breath analysing instrument.[8]
However, it is one thing to say that the prosecution must prove the good order and proper operation of a speed camera: it is another thing to hold that it must do so before it can invoke the statutory aids to proof in s 79B(10)(b).
[5] (1986) 46 SASR 317.
[6] Ibid at 323.
[7] [2005] SASC 209; (2005) 92 SASR 15.
[8] Ibid at [60].
The respondent submitted that proof that the speed camera was in good order and properly operated must be a condition of the admissibility of the s 79B(10) certificate because, if it was otherwise, the effect of the statutory aids to proof in s 79B(10) would be to impose upon the defendant the obligation to prove that the speed camera was not in good order and properly operated. He noted that s 79B(10) does not contain an equivalent of s 47K(3)(b)(ii) of the RTA which, in relation to breath analysis instruments, requires a certification that an instrument was in proper order and was properly operated to be accepted, in the absence of proof to the contrary, as proof of those facts. The respondent submitted that this indicated that the prosecution was required to prove those matters without the assistance of any statutory aid to proof.
I respectfully disagree with this submission. In my opinion s 79B(10) is premised on the prosecution having (throughout the trial) the onus of proving the good order and proper operation of the speed camera. It provides aids to the prosecution by which, amongst other things, it can discharge that onus. That being so, s 79B(10) is not to be understood as requiring good order and proper operation to be proved separately, and additionally, before a certificate under that subsection can be tendered.
If there is no proof to the contrary of the facts certified by the senior police officer in the s 79B(10)(b) certificate, the certificate is to be accepted as proof of the matters referred to in placita (i) and (ii) of s 79B(10)(a). This means that the photograph of the defendant’s vehicle is to be admitted into evidence. Once admitted into evidence, that photograph is to be considered along with any other evidence adduced in the case. In the absence of any evidence from a defendant, whether or not the charge is proved will depend upon what can be taken to be proved by the photograph and the other evidence adduced by the prosecution.
In such a case, by virtue of s 79B(10)(a), a Magistrate would have to accept that the photograph was taken at the date, time and location denoted on it. In addition to those denotations the photograph should also contain a denotation of speed and of direction of travel, but there is no statutory direction that the speed and direction denoted are, in the absence of evidence to the contrary, to be regarded as accurate. The denotation of speed on the photograph is insufficient by itself to prove that the defendant’s vehicle was travelling at the denoted speed.
However, an inference that a defendant’s vehicle was travelling at the denoted speed may be drawn from other evidence. The senior police officer’s certification that there was (in effect) compliance with reg 19(1)(a) is evidence from which it can be inferred that, on the date of the alleged offence, the speed camera was programmed, positioned and set to operate so that when it “registered” a vehicle at or above a designated speed, the camera took a photograph of the vehicle which recorded the date, time and location, together with the speed and direction of travel of the vehicle “as registered by” the speed camera. Put more shortly, the senior police officer’s certification would allow it to be inferred that the speed denoted on the photograph was the speed registered by the speed camera.
An inference that the speed camera was operated properly could be drawn from the senior police officer’s certification that checks were made in accordance with reg 19(1)(b) and (c) (i.e., while the speed camera was in position and before and after its use) that the camera was set to operate in the manner required by reg 19(1)(a) (i.e., to photograph and record the speed of a vehicle registered by the camera as proceeding at or above a designated speed). The senior police officer’s certificate would not be conclusive evidence that the speed camera was operated properly but it would, in my opinion, be evidence from which it could be inferred that the camera was so operated.
An inference that the speed camera was in good operating order at the relevant time could be drawn from a certificate tendered under s 175(3)(ba) as to the accuracy with which the speed camera registered speeds on the relevant date. Again, this would not be conclusive evidence about the good operating condition of the camera but it is evidence from which such a conclusion could be drawn.
A further inference that the speed camera was in good order and condition on the relevant date and that it was operated correctly could be drawn from the senior police officer’s certificate under s 79B(10) concerning the system according to which the speed camera was designed and set to operate. The present case provides an example. The Chief Inspector certified, amongst other things, that the speed camera was designed and set to operate so that when it registered a vehicle as proceeding at a speed equal to or greater than a speed set on the camera, a photograph was taken of that vehicle from the front or from the rear, and to record twice on the photograph the speed in kilometres per hour as registered by the camera. By virtue of s 79B(10)(c) that certificate meant that it had to be presumed, in the absence of proof to the contrary, that the camera was in fact designed and set to operate according to that system at the relevant time and that it did in fact so operate. In other words, s 79B(10)(c) requires it to be presumed, in the absence of proof to the contrary, that a speed camera was designed and set to operate according to a specified system and that it did in fact so operate at the relevant time.
In my opinion, the evidence of the kind to which I have just referred, and the inferences which can be drawn from that evidence, are capable, with the assistance of the statutory aids to proof, of establishing, that a speed camera was in good operating order and condition, and that it was operated correctly at the time of detection of a speeding offence. This is so even though s 79B(10) does not in express terms require a court to presume, in the absence of evidence to the contrary, that the speed camera was in good operating order and condition and that it was operated correctly. In these circumstances, it is not readily to be supposed that the RTA requires the prosecution to prove, before it can even tender the certificate under s 79B(10)(b), that the speed camera was in good operating order and condition and that it was operated correctly.
I note again that neither s 79B(10) nor s 175(3)(ba) are conclusive evidence provisions. They do not provide that the matters certified in the certificates are to be regarded as conclusively proved by the tender of those certificates. That is why a court must consider all of the evidence adduced by the parties bearing upon those matters, and not just the certificates.
Unlike s 47K(3)(b)(ii) of the RTA, the effect of s 79B(10) is not to impose a persuasive onus on a defendant to prove that the speed camera was not in good operating order and condition. Even if a defendant does adduce some evidence indicating some defect in the condition or manner of operation of a speed camera affecting the reliability of the speed which it recorded, the onus of proof in relation to the issue of fact involved remains on the prosecution, and that onus is of course the criminal onus.
In short, I do not consider that it was necessary for the prosecution to prove, separately and independently, and before admitting the s 79B(10) certificate and the photograph that the speed camera used on Pine Avenue on 7 June 2007 was in good operating order and condition and that it was operated properly. Accordingly, I consider that the Magistrate erred by not admitting the certificates into evidence. The certificates should have been received and the trial should then have proceeded in the ordinary way. If the evidence of Mr Hoffmann and of Dr Garwoli had been received in the substantive trial, the Magistrate should then have considered whether the prosecution had proved that the speed camera was in good operating order and condition, and was operated correctly, on 7 June 2007 and whether the speed of the respondent’s vehicle which it registered was reliable.
Because the Magistrate did not proceed in this way, the trial miscarried. Accordingly, the appeal should be allowed and the matter remitted to the Magistrate so that he can complete the hearing.
The “Possibility” of an Unreliable Reading
On the appeal, counsel for the police argued that the Magistrate had been wrong in accepting that the “possibility” of an incorrect reading was sufficient to constitute “evidence to the contrary” for the purposes of s 79B(10)(b) and s 175(3)(ba). On the view I take of the matter, that question does not arise. Instead, what the Magistrate should have done was to consider in the substantive trial whether he was satisfied that the prosecution had proved that the respondent’s vehicle was travelling at 61 kph. If Dr Garwoli’s evidence is received in the substantive trail the Magistrate will have to consider whether the prosecution has excluded, as a reasonable possibility, that the speed registered by the speed camera was unreliable.
It will not be every departure from operating instructions which will have the effect that a speed camera was not operated correctly, and it will not be every departure from the operating instructions which will make the recording of a vehicle’s speed by a speed camera unreliable. This issue was discussed by Doyle CJ in Police v Henwood[9] and has been discussed in a number of cases decided in the Supreme Court of Victoria, in an analogous context.[10] As the matter will have to be remitted to the Magistrate for further hearing, it is inappropriate to address this issue further.
[9] [2005] SASC 209; (2005) 92 SASR 15.
[10] For example Ozbinay v Crowley (1993) 17 MVR 176; Fitzgerald v Howey (1996) 24 MVR 369; Williams v Jacobs [1999] VSC 88, (1999) 29 MVR 244; Bogdanovski v Buckingham [1989] VR 897.
Section 79B(10) and the onus of proof
It will be apparent from these reasons that I have regarded the phrase “absence of proof to the contrary” appearing in s 79B(10) and s 175(3) as imposing on a defendant a persuasive onus of establishing on the balance of probabilities proof the contrary of the matter in question. That is, I have proceeded on the basis that a defendant must do more than merely adduce or point to some evidence to the contrary in order to displace the operation of the presumption, or to deny the availability of the statutory aid to proof. In doing so, I have followed the approach stated in Evans v Benson.[11] King CJ (with whom Jacobs, Bollen and Olsson JJ agreed) referred to “the established proposition that the words “presumed in the absence of proof to the contrary” have the effect of reversing the legal onus of proof thereby casting a persuasive onus on the defendant to prove, on the balance of probabilities, the contrary of what is presumed”.[12]
[11] (1987) 46 SASR 317.
[12] Ibid at 319.
In each of Police v Dodd[13] and Llewellyn v Police,[14] a Judge of this Court held that the words in s 175(1) of the RTA providing that an allegation of a specified matter in a complaint is “proof of the matters so alleged in the absence of proof to the contrary” place upon an accused an evidential onus only, i.e., of raising some evidence to the contrary but with the prosecution continuing to have the onus of establishing the matters in question beyond reasonable doubt. Counsel for the Police on the present appeal submitted that I should hold that Police v Dodd and Llewellyn v Police were, in this respect, wrongly decided. I decline to do so. It is not necessary for the disposition of this appeal, as s 175(1) of the RTA has not been in issue. It may be that this aspect of Police v Dodd and Llewellyn v Police will have to be reconsidered, especially as no reference was made in the judgments in those cases to the Full Court decision in Evans v Benson, but it is a neither necessary nor appropriate for that to occur in relation to this appeal.
[13] [2004] SASC 91; (2004) 88 SASR 130.
[14] [2005] SASC 160; (2005) 91 SASR 418.
Conclusion
For the reasons given above, I allow the appeal. The Magistrate’s dismissal of the complaint against the respondent is set aside. The matter is remitted to the Magistrate in order for him to complete the hearing of the charge against the respondent in accordance with these reasons.
27
5
1